This argument comes up from time to time during gun control arguments. An anti-gun person who intends to use it as a strawman argument usually offers it facetiously or sarcastically. A strawman is a logical fallacy in which a debater exaggerates an opponent's position, directs arguments at this exaggerated position, and claims to have defeated the opponent's real argument.

The Second Amendment guarantees individual citizens the right to keep and bear arms. Even professors who can only be described as extremely left-wing have come to this conclusion. For example, the prominent law professor Laurence Tribe, has reluctantly concluded that this Amendment explicitly upholds the right of citizens to keep and bear arms.

The writings of our Founding Fathers reveal that there were two sociological reasons to uphold this natural right: To prevent crime, and to defend against a rogue domestic government. As example of the Founders thoughts on the crime-deterrent effect of civilian firearms possession, I give you Thomas Jefferson:

"The laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity ... will respect the less important and arbitrary ones ... Such laws make things worse for the assaulted and better for the assailants, they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man."

And as an example of how the Founders felt about civilian firearms possession as regards keeping our government 'honest and upright', I give you, again, Thomas Jefferson, who warns:

And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.

To suppose arms in the hands of citizens, to be used at individual discretion, except in private self-defense, or by partial orders of towns, countries or districts of a state, is to demolish every constitution, and lay the laws prostrate, so that liberty can be enjoyed by no man; it is a dissolution of the government. The fundamental law of the militia is, that it be created, directed and commanded by the laws, and ever for the support of the laws.4

Therefore, we can reasonably suppose that the Founders intended us to have access to every manner of weapon for defense of home and of liberty. However, therein lies the rub: Does every manner of weapon mean access to nuclear weapons, biological weapons, chemical weapons?

Our Founders were just men, men of proportion. They drew their ideas for our constitution from the writer and philosopher John Locke. Locke believed that the state of nature implied a law of nature, which is that "no one ought to harm another in his life, heath, liberty or possessions." Ergo, there were "natural rights" to life, liberty and property.5

Locke puts forth that we own our own bodies, and thusly we have the right to own and control ourselves.

THE RIGHT OF SELF DEFENSE

If you have the right to own, then you also have the right to assert ownership -- otherwise known as "protect" -- that which is yours. The right of self-defense flows naturally from this right, and is enshrined by our Founders as the Bill of Rights, and even is quite prevalent in the Declaration of Independence. If you have the right to self-defense, then it naturally follows you have the right to effective tools to exercise that right. In simple terms, it makes no sense to say you have the right to drive on highways, but then ban automobiles. Again, the learned Mr. Jefferson agrees:

"The right to use a thing comprehends a right to the means necessary to its use, and without which it would be useless."

Another right flows from John Lockes principles: You also have the right to be undisturbed. In his words, "....liberty is to be free from restraint and violence from others....". You have the right of 'quiet enjoyment' of your belongings, including your body, so long as you do not molest or act aggressively or violently to another. Nor, of course, do you have the right to disturb anothers quiet enjoyment of his or her belongings by molesting, acting aggressively, or acting violently to another person.

Take these two rights together: YOU HAVE THE RIGHT TO SELF DEFENSE (and effective tools to defend yourself), and YOU MAY NOT MOLEST OR ATTACK THOSE WHO ARE NOT ATTACKING YOU FIRST.

Therefore, it is clear that any tool of self defense you choose must be a tool you can direct to be capable of discriminating between an attacker and an innocent. Clearly, the following tools are capable, with a minimum of care, of being directed against an attacker without jeopardizing innocents:

Knife

Club

Sword

Dirk

Mace

Pistol

Rifle

Shotgun

Cannon shooting ball shot

The following tools are slightly more questionable, since they are somewhat less able to be directed with great accuracy, and thusly are less discriminating. They have a larger chance of violating an innocent persons 'quiet enjoyment' of his property during the suppression of a criminal attack:

Machine gun

Machine pistol

Small explosive device

Satchel charge

Antitank rocket

The following tools are completely indiscriminate, and may harm innocent people decades after their use. These tools are completely inappropriate for your right of self defense, since they will certainly violate an innocent persons right of quiet enjoyment of their property.

Nuclear device

Large explosive device

Fuel-air explosive

Biological weapon

Land mine

Chemical weapon

Booby trap

Hopefully, this will lay to rest once and for all the straw man offered by so many antigunners. Nuclear weapons are not allowed to be used for self defense by private citizens because they are not sufficiently discriminating.

This was written in response to ConsistentLibertarian's (or as I like to call him, InconsistentLiberal) repeated use of this particular straw man argument.

His response to me is that he rejects one of the premises on which this argument is based. To quote him:

But since you make an argument based on a premise I don't accept, I need you to say something more about why I should accept that premise. [To wit, ] You're making inferences about the Framers intent based on texts which are not part of the constitution. I need you to say something more about why those inferences matter. For me, the text is all that matters.

My response to him is that we can address this premise right now. This individual (who I suspect is a disruptor, but that is an ad hominum observation and in no way detracts or supports my argument) has stated they reject the premise that one can infer meaning and intended results in the Constitution by examining the writings, speeches, and actions of the persons who wrote it. While this seems like an obvious premise to put forth, I am willing to take him through the logic process point by point, since it is a compound premise and is subject to the possible fallacy of the Complex Question. I will demonstrate it is not.

Just out of curiousity, and immediately before going out to lunch, I'd like to ask you to consider the following question. Thank you for considering my inquiry.

How will a land mine or booby trap, emplaced upon my own property, "violate an innocent persons right of quiet enjoyment of their property"? Consider that I live alone and have no pets, and also that the property is prominently posted "No Tresspasing".

How will a land mine or booby trap, emplaced upon my own property, "violate an innocent persons right of quiet enjoyment of their property"? Consider that I live alone and have no pets, and also that the property is prominently posted "No Tresspasing".

Human intervention is required in order for any weapon to be considered 'discriminating', since the discrimination must come from someone with the capability to make that discriminative decision. Therefore -- since these two weapons lack human intervention -- discrimination is impossible and they fall into the final catagory of weaponry.

Very nice analysis. Its reasoning is lost, however, on those who blindly seek to disarm and then enslave the citizenry. No amount of logical discourse, historical obeservation, or simple rational use of the English language will dissuade them from their "beliefs". The crux of the gun argument comes to down to who will prevail in the long run, and what level of force will be required to win: those who love liberty, or those who simply have no faith in the basic goodness of humanity,those who think that the law functions because people are afraid of the consequences of breaking those laws, or those who see the law as an extension of what good people view as "right". I have had the latter argument with law school graduates who only see the law as an instrument of force; it is those same people who really think that mankind must be "controlled" or else all havoc will out. Those people are simply what I call The Enemies of Freedom; they will never stop nor will they ever admit that the 2nd means that citizens of the US have what is supposed to be an unfettered right to keep and bear arms. Before this arugument is settled, there are going to be some very ugly times in America. God help the Republic.

I disagree. As far as I am concerned, I can own nuclear weapons. Since all men are equal before God and the law, no man is my master. If man or group is entitled to own nuclear weapons, then I am. As far as the weapon being discriminating, a nuclear weapon can be sufficiently discriminating if it is directed at a tyrannical government which is also armed with nukes. (Think Hillary Clinton, Janet Reno, Waco, etc.)

Well, until your friend shows up, I just want to say that I think I agree with him (bearing in mind that the only thing I know about his position is what you've told us right here). I agree that the first thing we need to look at when determining the meaning of any law is the text itself, because the whole reason for writing a law down was so that we don't have to keep reinventing the wheel by wondering what it was they "intended" to say (the ol' hanging-chad syndrome). If the text seems inconclusive despite all our efforts, then it would be appropriate to inquire as to the intentions of the authors.

I disagree. As far as I am concerned, I can own nuclear weapons. Since all men are equal before God and the law, no man is my master. If man or group is entitled to own nuclear weapons, then I am. As far as the weapon being discriminating, a nuclear weapon can be sufficiently discriminating if it is directed at a tyrannical government which is also armed with nukes. (Think Hillary Clinton, Janet Reno, Waco, etc.)

Oh, have you invented a new nuclear weapon that causes people who are aggressing against you to be vaporized, while only gently nudging people who are innocent and happen to be in the blast radius?

Because otherwise, I am seeing you assert that your right of self-protection triumphs other people's right of self-protection. I see you asserting that you are 'more equal' than others.

Therefore -- since these two weapons lack human intervention -- discrimination is impossible and they fall into the final catagory of weaponry.

Human intervention was performed during the siting and emplacement. The person who chose the sites for the mines and traps (presumably) made decisions on where to emplace them with an eye towards self-defense, and didn't just randomly scatter them over the landscaping.

Well, until your friend shows up, I just want to say that I think I agree with him (bearing in mind that the only thing I know about his position is what you've told us right here). I agree that the first thing we need to look at when determining the meaning of any law is the text itself, because the whole reason for writing a law down was so that we don't have to keep reinventing the wheel by wondering what it was they "intended" to say (the ol' hanging-chad syndrome). If the text seems inconclusive despite all our efforts, then it would be appropriate to inquire as to the intentions of the authors.

Well, we can rely on the text to a reasonably large degree. There was at least one weapon of mass destruction (e.g., an indiscriminate weapon) in existence in the time of the founders; the introduction of biological agents against a populace. I am not seeing mention of the keeping and bearing of smallpox in the Second Amendment anywhere.

While it is a well reasoned argument I think it fails on the fact that the writers of the constitution did not in fact include any language setting the standard of the weapon as being discriminating. It is also a fact that they did not prohibit any type of weapon , even though non discriminating weapons did exist at that time Ie: trap guns, spring guns, canons w/ grape,chain and other types of loose shot. A better argument would be that even though it is constitutional to own such weapons, society can have a compelling and overiding reason to ban such weapons, ie based on the magnatude of the damage inflicted. your arguments are very weak when it comes to machine guns,Machine pistols,Small explosive device,Satchel charge, Antitank rocket, Booby traps, land mines, all of these are currently used as standard weapons of war and as such should clearly allowed under the constitution. The deciding factor on using any of these weapons is still the same as to when we use any deadly weapon, was it a reasonable use?

As for what the Constitution's position on this is, I have some observations to make:

1. The powers of the federal government are limited to only what is positively given to it. Hence, the second amendment is largely unnecessary (which is why it wasn't part of the original Constitution - not because the Founders didn't think that people had a right to arm themselves). So the feds may not even regulate nuclear weapons ownership, because they were never given that power to begin with.

2. Your arguments regarding the discriminatory capabilities of various weapons make plenty of sense, but they have little or no bearing on what the second amendment says (see my #14). If we want the law to make such distinctions (which weren't a concern in 1791), then we'd have to pass another constitutional amendment.

3. The fact that the feds don't have the direct power to regulate nuclear weapons doesn't mean that they can't be regulated: the states still retain that power. Some might object that the "privileges and immunities" clause of the 14th amendment extends the protections of the Bill of Rights against state governments. I realize that the federal courts have ruled that it does, as they're much more comfortable with restricting the states than restricting the feds, but it should be noted that they didn't start ruling that way until several decades after the amendment was passed. Privileges and immunities don't seem to be the same thing as rights.

Insufficient. The human intervention must occur on the decision to detonate, since some innocent person such as a firefighter may be in the path of the weapon during the legitimate performance of his duties. You may have placed your weapons very safely in your X-Y-Z cartesian coordinate system, but the dimension of t (time) may cause the weapon to be unsafely placed.

Booby traps and land mines are wholely indiscriminate weapons, and cannot fall under the protection of the Second Amendment due to the indiscriminate nature thereof.

Your arguments are very weak when it comes to machine guns,Machine pistols,Small explosive device

Not at all. Since they are somewhat less discriminating, I would establish some rules as pertaining to their use: No use when your backdrop is that of a crowded area; an idiot-check to make sure you are not effing nuts, and that is about it. Kinda like Brady Bill for Machine Guns only, and the repeal of the (in my opinion unconstitutional) 1934 National Firearms Act.

2. Your arguments regarding the discriminatory capabilities of various weapons make plenty of sense, but they have little or no bearing on what the second amendment says (see my #14).

All of our rights are bracketed by the existence of our fellow-citizens rights. (Free speech and yelling fire in a crowded theater, etc etc). This should be self-evident. To argue against that is to argue you have superior rights to everyone else.

If we assume that the text of the Second Amendment does not make a distinction between dicriminating and indiscriminate weapons and if we further assume that none of the persons associated with the adoption of the Second Amendment ever even considered the distinction, can we nevertheless conclude that the Second Amendment protects only discriminating weapons because, if the persons associated with the adoption of amendment had actually thought about the distinction, they would have intended to limit the Second Amendment's protection to discriminating weapons?

Perhaps. On the other hand, all the people of Japan were not aggressing against the US when we nuked them. Not that what we did was right, but we did what was nessecary to defend ourselves. Any right that men can assert collectively, I believe one man can assert individually. Do we have the right to kill innocents? No, unless to not do so means that we will be killed. West Bank anyone? Anyway, to some extent, people are guilty of the crimes of their leaders. If they are our own leaders, we would be foolish to kill ourselves in an effort to stop them. At some point, it may come down to us vs them. Someone lives, someone doesn't. If I am not the aggressor, and someone innocent has to die, I propose that it not be me. Unequal? If someone who is innocent has to die so another may live, you are correct. It is not equal. The children at Waco were apparently not equal. Then again, its the same government that killed them that wants to disarm us.

There was only one known indiscriminate weapon of mass destruction known to the founding fathers at that time: biological agents.

One can reasonably conjecture that if they were interested in including indisriminate weapons, that the Second Amendment would read: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, and to keep and spread Contagious Diseases, shall not be infringed.

All of our rights are bracketed by the existence of our fellow-citizens rights.

Morally, that's true. But it's the job of the law to determine when our rights violate the rights of others. To argue otherwise is to argue that we don't need laws at all, other than "just make sure you don't violate anyone else's rights." Sounds beautiful, yes, but I think society might run into a bit of trouble unless its laws got a little more specific than that.

I think I agree with some of the others here that it is up to me to discrimate how I use that which I am entitled to own. I am allowed to own my arm. If I hit you in the nose with it, that is separate. Then the question becomes whether or not it was within my rights to do so. I agree that it is hard to avoid trampling someone else's rights with a nuclear weapon. Yet, many people own them. Are they my master?

"Thats as may be, but are you of the opinion that your rights triumph anothers rights?" In no way have I said that my rights trump others, that argument is a red herring, I expect better of you than that laz!

To put it more succinctly: The right to swing your arm ends where my nose begins. If your nose walks into my arm as I am swinging while I have taken reasonable percautions against hitting your nose then in fact that is not true. If however I have not taken any reasonable percautions then I might have indeed violated your rights to have an un-hit nose. Rights do not exist in a vacum so that is why intent, and reasonableness of behavior, and degree of responsibility must be considered.

Morally, that's true. But it's the job of the law to determine when our rights violate the rights of others. To argue otherwise is to argue that we don't need laws at all, other than "just make sure you don't violate anyone else's rights." Sounds beautiful, yes, but I think society might run into a bit of trouble unless its laws got a little more specific than that.

I think we have come full circle. Since you concede that one mans rights are bracketed by the next mans rights, we need to define arms more specifically, especially since the nature of arms have changed. Thusly, my argument about the bracketing of possession rights of WMD's against the rights of others to quietly enjoy their property.

Lazamataz said: "Oh, have you invented a new nuclear weapon that causes people who are aggressing against you to be vaporized, while only gently nudging people who are innocent and happen to be in the blast radius?"

You must agree then that the sniper rifle used by Lon Horiuchi against Randy Weaver is not protected by the Second Amendment. How else can one explain how Weaver's wife was killed unless you suspect that Horiuchi intended her death.

Well, this is a good question Larry. Actually, there is no federal law or state law that would prevent you from owning or operating a nuclear weapon, as long it is outside a school zone. I think congress has never really considered the possibility that someone just might want to own one or purchase one. Of course, if you were thinking of operating a nuclear power plant, thats different. You have to license and regulate that. But nuke weapons are not illegal.

I know of no individual people who own nuclear weapons, but I know of a few nations who do. And the rights of nations versus the rights of individuals is a completely different topic that that which I have written about above: The rights of the various and several individuals, only.

Since you concede that the nature of arms have changed since 1791, we need to pass a new constitutional amendment in order to define arms more specifically.

Maybe, or maybe we can simply use the logic and common sense of the inherent bracketing of rights as I have described them. However, if you were interested in a more precise amendement, I would recommend you use my discrimination arguments above.

The discrimination-test will allow for individual possession of laser, plasma, and other directed-energy small arms that the present interpretation of the amendment may not allow. The courts are likely -- at present -- to deny possession of laser pistols to the common man, and I find this to be an abhorrant future probability.

"Not at all. Since they are somewhat less discriminating, I would establish some rules as pertaining to their use: No use when your backdrop is that of a crowded area; an idiot-check to make sure you are not effing nuts, and that is about it. Kinda like Brady Bill for Machine Guns only, and the repeal of the (in my opinion unconstitutional) 1934 National Firearms Act" Rules about their use already exist Laz, it's called responsibility, if you fire in a crowded area and you hit someone who was not your intended target then you stand the chance of being tried by a jury of your peers to find out if your actions were reasonable at the time. If they weren't then you are looking at serious jail time. I don't disagree with your intent I however disagree with your method. In a truley constitutional situation it would be up to the government to prove that you are incapable of being trusted.

Fury said: "This topic again? Sigh.... Set 'em straight Laz. I can't believe that someone believes the 2nd Amend. provides for the right to own AND USE nukes..."

Then you must believe that the first amendment does not protect writings on the Internet. Please describe how the language of the Constitution protects one but not the other. If one wished to justify as Constitutional the restriction of free speech on the Internet, wouldn't it be necessary to amend the Constitution?

You must agree then that the sniper rifle used by Lon Horiuchi against Randy Weaver is not protected by the Second Amendment. How else can one explain how Weaver's wife was killed unless you suspect that Horiuchi intended her death.

I suspect that Horiuchi intended her death. Of all the discrimination available, a trained sniper is the most discriminating possible shooter.

Rogue cops don't detract from my argument, whether or not the government coddles and covers up for the criminal policeman in question.

One can reasonably conjecture that if they were interested in including indisriminate weapons, that the Second Amendment would read: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, and to keep and spread Contagious Diseases, shall not be infringed.

Do you think we can fairly attribute to those who were involved in the adoption of the Second Amendment an intent regarding a distinction between discriminatory and indiscriminate weapons without any clear evidence that any of them ever even thought about the distinction?

In no way have I said that my rights trump others, that argument is a red herring

Then, since nuclear weapons are indiscriminatory, and since you invariably will violate an innocent parties right of quiet enjoyment should you detonate a nuclear weapon, then you will be forced to concede that your possession and use of a nuclear weapon is likely to violate anothers rights. And since you clearly infer you believe your rights do not trump anothers, I expect you would understand and agree with the discrimination test.

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